An employee who is a trade union official is not exempted from disciplinary control by his/her employers

Aggrey Murumba & 13 others v Teachers Service Commission & another; Kenya National Union of Teachers Wilson Sossion, Knut Executive Secretary General (Interested Parties) [2019] eKLR

Petition No. 179 of 2019

Employment and Labour Relations Court at Nairobi

Radido Stephen, J

December 11, 2019.

Reported by Kakai Toili

Labour Law – employment – disciplinary actions by employers –where a trade union official was subjected to disciplinary actions by the employer - whether employees who were trade union officials were exempted from disciplinary control by their employers.

Civil Practice and Procedure – suits – institution of suits - where another suit raising similar questions was pending before another competent court -whether a suit could be instituted where another suit raising the same questions was pending before another competent court - Civil Procedure Act (Cap 21), section 6.

Civil Practice and Procedure – suits – parties to a suit – joinder of parties – where there was a challenge on the validity of the competency based curriculum (CBC) – where the Kenya Institute of Curriculum Development (KICD) had the mandate to develop the CBC – where the KICD was not involved in the suit - what was the effect of challenging the validity of the CBC without the direct participation of the KICD.

Civil Practice and Procedure - res judicata - non-disclosure of information relating to prior litigation over the subject matter of a dispute - duty to render full disclosure of all material information before a court – failure to disclose all material information - effect of - whether non-disclosure of past court proceedings was an abuse of the court process

Brief Facts

The petitioners were registered teachers who had been elected to various Kenya National Union of Teachers (KNUT) positions. In 2019, the 1^st respondent, TSC issued show cause notices to some of the petitioners, asking them to show cause within prescribed timelines why disciplinary action should not be taken against them. TSC later on informed some of the petitioners of the decision to dismiss them from service. The KNUT, of which the petitioners were ranking members was aggrieved with the mass disciplinary proceedings and thus moved the court to challenge the disciplinary process.

The petitioners also challenged the constitutional validity of the competency based curriculum (CBC). However, TSC took a preliminary objection that the court lacked the requisite jurisdiction to adjudicate on the constitutional validity of CBC on grounds that; the dispute relating to CBC was not an employment dispute; that it did not have the mandate to develop the CBC, a task reserved to the Kenya Institute of Curriculum Development (KICD); and that the validity of the CBC was under challenge in the High Court, among other grounds. At the same time, the court allowed the pending disciplinary proceedings to continue, but interdicted TSC from releasing any verdicts pending the hearing and determination of the petition.

Issues

1. Whether an employee who was a trade union official was exempted from disciplinary control by employers.
2. Whether a suit could be instituted where another suit raising the same questions was pending before another competent court.
3. What was the effect of challenging the validity of the competency based curriculum without the direct participation of the Kenya Institute of Curriculum Development?
4. Whether non-disclosure of past court proceedings over the subject matter of a dispute was an abuse of the court process.

Held

1. Under the Kenya Institute of Curriculum Development Act, it was the KICD which had been clothed with the mandate to lead the development of curriculum. TSC and Kenya National Union of Teachers (KNUT) were just some of the primary stakeholders in the process. A legal challenge to the competency based curriculum without the direct participation of the KICD would be a legal non-starter.
2. The petitioners did not deny that there were legal proceedings before the High where the CBC was under challenge. The prudent thing the petitioners should have done was to seek to join those proceedings so that a certain and final legal conclusion was made on the validity of the competency based curriculum.
3. Aspects of the competency based curriculum would implicate the terms and conditions of service of teachers, who had organised under the aegis of several unions and on that ground, the court would not easily decline jurisdiction. The court would nevertheless decline jurisdiction over the challenge to the constitutional validity of the competency based curriculum because of the proceedings pending before the High Court.
4. The 3^rd, 10^th and 14^th petitioners were taken through a disciplinary process by TSC culminating in their dismissal from the teaching service through letters dated August 23, 2019. It was therefore legally misguided for them and/or their advocate to sneak into the petition their causes of action wherein the main dispute related to pending disciplinary action against the other petitioners and the constitutional validity of the competency based curriculum.
5. The petitioners did not disclose the status of the judicial review proceedings in Nairobi and the cause in Kisumu to the court. The disclosure of the pending or any past proceedings was relevant and material and without such disclosure, the participation of those petitioners in those proceedings amounted to abuse of the court process.
6. Section 6 of the Civil Procedure Act outlawed the institution of a suit where another suit raising the same questions was pending before another competent court. KNUT, of which the petitioners were all members, instituted judicial review proceedings before the court where the disciplinary action against certain of its officials/members was central. Amongst the persons for whose benefit the proceedings were commenced were 1^st, 4^th, 6^th, 10^th, 12^th and 13^th petitioners. Apart from stating that the orders granted were no longer in force, the petitioners did not disclose the status of the proceedings. Such a disclosure was both material and relevant to enable the court address appropriately the question of sub judice in relation to the judicial review proceedings.
7. Comparative jurisprudence showed that there had been a shift on the susceptibility of union officials to an employer’s disciplinary control. The jurisprudence showed that employers had a fundamental right to discipline union officials for just and reasonable cause.
8. Previously, union officials enjoyed blanket protection from disciplinary control by employers, but that was not the norm or practice. An employee who was a union official had a difficult balancing act to carry. He had to robustly play his role as a union official for the betterment of the terms and conditions of service as agreed with the employer while alive to the fact that as an employee he had to not be insubordinate to the employer. However, an employer had to tread carefully when subjecting a union official who was an employee to disciplinary action because the range of activities in which a trade union official could participate on behalf of the union was much wider than for an ordinary member/employee.
9. It was not the court’s business to interrogate at that stage any type of defences the petitioners had to the allegations presented against them. They had to at the first instance lay those defences before TSC.

Petition dismissed with costs to the 1^st respondent; costs to be paid by each petitioner in equal proportions.